Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.

Wednesday, August 31, 2005

People v. Lee (Cal. Ct. App. - Aug. 16, 2005)

Here's the real benefit of pervasive gun ownership: So you can shoot at stray dogs who happen to approach you. Thank goodness it's so easy for retired police officers to carry a gun around all day. 'Cause you clearly need to fire a gun randomly in a crowded commercial area to scare off two strays who are playing together near you. That 100 pound Rottweiler you're walking definitely doesn't provide any safety at all. You clearly need a firearm as well. And to use it. Definitely.

Pamela Lee had best be glad that I wasn't on her first jury, as I'd have likely convicted her on several of the counts on which she was acquitted. Or on her second jury either, which convicted her of gross negligence in the discharge of a firearm. A fair result, in my view. Ditto for the sentence: 180 days working for the Humane Society, an animal shelter, a tree farm, or Cal-Trans. Don't shoot your gun randomly -- and strike a car, by the way -- just to scare off some animals who want to play with your dog. Duh.

That said, I think that Justice Flier is right to reverse her conviction. She was entitled to an instruction on self-defense, which the judge refused to give. Self-defense doesn't just apply to people. It applies to animals as well. There's a higher-level argument here that Justice Flier doesn't get into regarding why instructions on the necessity defense might be adequate in this regard, but I think that, even applying self-defense to animal threats doesn't mean -- as the lower court held -- that the doctrine must not apply thereto. That's why we do this fancy thing called "legal reasoning". There's always got to be a first case that does something. And legal reasoning is, my dear jurist, how we decide those cases. We don't just say "Well, there are no cases on point that say what you're saying, so you must be wrong." Rather, we reason it out.

A good law review topic, by the way. Whether the self-defense topic applies to animal attacks (or, to put it somewhat differently, "forces of nature") and, if so, what kind. Bears? Sure. Dogs? Why not. Cats? Getting silly. Germs? Viruses? Rocks? Storms? You get the point of those last four examples, right? At what point does the self-defense doctrine collapse into the necessity defense, and what line do we draw between when the two doctrines apply?

By the way, for those law students out there, this case is also a good one to read if only to disabuse you of the notion that professors use the Socratic/hypothetical method in class just to torture their students for fun. Here's Justice Flier's description of the oral argument in the lower court regarding whether the requested self-defense instructions were proper: "Parts of the discussion resemble hypothetical discussions at law school. Green argued that self-defense applied to an attack by 'any living being, whether it be [a] mountain lion, a bear, a dog, a shark, whatever it would be.' The judge responded by asking if the risk of imminent attack by a dog would entitle a person to detonate an atomic bomb."

P.S. - I hope our hypotheticals are a lot better than that one. Which is totally easy. Like I'm really going to say that an attacking dog justifies setting off an atomic bomb. Which is a point about proportionality anyway, not at all about whether the self-defense doctrine applies to animal threats. You can't set off a nuke to stop a dog for the same reasons you can't set off a nuke to stop a person. It's not a proportional response. So that's the right answer, albeit to a query that doesn't at all highlight the proper answer to the dispositive issue faced by the lower court.